Could Joe Arpaio Break the Presidential Pardon?

Joe Arpaio is back. Today, a federal judge will hear arguments in the continuing case of United States v. Joseph M. Arpaio—the case in which Donald Trump issued his first presidential pardon. To many people, it might be strange to realize the case is continuing at all. Normally, a pardon is the end of a criminal case, or an epilogue. But the controversial sheriff of Maricopa County, Arizona—convicted of criminal contempt of court—has decided to try to clear his name, asking a court to vacate his original conviction entirely. (Normally, a pardon protects the pardoned person from punishment, but leaves the fact of the conviction on the books.)

Arpaio might indeed get his record wiped clean. But in asking a court to vacate his conviction, Arpaio is inviting another possibility as well: that the court will decide his pardon was not valid in the first place. If that happens, the pardon would mark a new development in the law: judicial willingness to limit the presidential pardon power itself.

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For a long time, the conventional wisdom has been that a president could grant a pardon for any reason, and that a presidential pardon for a federal crime could not be challenged in court. But that view of the pardon power is not stated anywhere in the Constitution. Article II, Section 2 says the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” It doesn’t say “… and any pardon the president grants is absolute and unreviewable.”

Rather than being a rule stated in the Constitution, the assumption that presidential pardons can’t be overturned by courts is a matter of long-standing convention.

There are reasons why such a convention is attractive: A pardon is an act of mercy, and there is something dissonant about picking apart acts of mercy in the courtroom. But treating the pardon power as absolute also has downsides, because any absolute power can be exercised irresponsibly. The convention, therefore, is partly built on the judiciary’s confidence that presidents exercise the pardon power responsibly—or at least that whatever abuses occur are within tolerable bounds.

So for the courts to deem a pardon invalid would be a departure from convention. But the Arpaio pardon itself is highly unconventional, maybe sufficiently so to make the courts doubt that we are still in the realm of either responsible uses of the pardon power of even tolerable abuses of it.

One of the unusual things about the Arpaio pardon is that the crime for which Arpaio was convicted isn’t based on a statute. It arises directly from the Constitution. In prior proceedings, federal courts ordered Arpaio to cease a set of unconstitutional racial profiling practices that the Department of Justice identified as the worst in American history. Arpaio was then convicted of criminal contempt when he refused to comply with those court orders. In other words, Arpaio systematically violated the constitutional rights of large numbers of individuals, and he was then prosecuted and convicted for persisting after the courts told him to stop. So by pardoning him, Trump did not merely forgive an offense against a federal statute: He forgave a refusal to respect rights guaranteed by the Constitution.

It's impossible to know what the Arizona judge will decide in Arpaio's case, but there are already indications it's being treated as something of a big deal. Rather than granting or denying the request, the court scheduled an actual oral argument. That's not normal, and it's something a court would do only if it thought there was a serious issue to work through. Public interest groups have filed amicus curiae briefs arguing that the court should invalidate the underlying pardon—which won't necessarily sway the judge's action, but does put the issue formally on the table.

What little case law exists on the limits of the pardon power seems to recognize a distinction between pardoning offenses against statutes passed in the general public interest and pardoning offenses against the rights of particular individuals. In his opinion for the Supreme Court in Ex parte Grossman, a 1925 decision upholding a pardon in a criminal-contempt case, Chief Justice (and former pardon-power wielder) William Howard Taft noted that the petitioner had been convicted of violating a statute passed to vindicate a general public interest—the National Prohibition Act—rather than of doing anything that violated the rights of some discrete other person.

Implicit in that opinion is the idea that the president might not have the power to release a claim for justice held by a private person.

Once this logic is in view, it’s easy to read the text of Article II itself as limiting the pardon power along the very lines that Chief Justice Taft described. Article II grants the president power to pardon offenses “against the United States.” But not, perhaps, offenses against individual Americans. And Arpaio’s underyling offense is the systematic violation of individual constitutional rights.

The point here isn’t that the Philadelphia Convention of 1787 chose the language “offenses against the United States” as a deliberate way of preventing presidents from pardoning crimes rooted in the violation of individual constitutional rights. Such a thing could probably never have occurred to the convention delegates because the Constitution they drafted included few if any individual rights that government officials could conceivably be prosecuted for violating. The specification of individual rights came later, with the amendments. The point, rather, is that the broad deference we give to the president’s pardon power is based on the assumption that the president observes certain limits—and once those limits are no longer respected, lawyers and judges will have little trouble finding authority to support the idea that the pardon power has limits.

Invalidating a pardon on the grounds that it undermined guaranteed constitutional rights would be something new, but it would fit comfortably within a set of well-established general principles. Most grants of power in the Constitution are limited by other parts of the Constitution, and there’s no reason to see the presidential pardon differently. Courts are, as a general matter, charged with enforcing our guaranteed rights against abuses of the powers the Constitution grants to the other branches of government. The reason for courts not to go down this road is, of course, the value of trusting the president to use certain powers without judicial review. Maybe we’d be better off if courts just stayed out of the way, even at the risk of periodic abuses. In the long run, the constitutional system cannot function if the people who hold office can’t be trusted to exercise their powers responsibly; a government in which judges second-guessed everything might be as nightmarish as it would be unworkable.

But when two institutions have a convention of mutual self-restraint—I don’t abuse my powers, and you leave me alone to exercise them—then it’s perfectly foreseeable for a failure of self-restraint on one side to provoke a less restrained stance on the other. Trump has consistently refused to abide by conventions that have traditionally shaped the relationship between the judiciary and the chief executive. His public stance on Arpaio’s conviction transgresses another such convention: by suggesting that Arpaio was merely “convicted for doing his job,” Trump charged that the court was out of line to convict him. That’s both an insult to the court and a departure from settled understandings about the nature of pardons— which are traditionally understood as acts of grace granted to the penitent guilty, rather than as vindications of the righteous and indictments of the courts that convicted them.

If the courts decide that Trump’s aggressive use of the pardon power requires them to be less restrained, Trump’s attempt to pardon Arpaio might have the effect of narrowing the scope of the pardon power in the future, both for him and for presidents who follow. Or he could respond to a judicial invalidation of Arpaio’s pardon with yet a further escalation of his conflict with the courts—which could provoke a further escalation after that, and problems that no pardon could possibly resolve.